D & D - [2005] FamCA 356

[2005] FamCA 356

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF 1325 of 2002

BETWEEN: D

Applicant Mother/Wife

AND: D

Respondent Father/Husband

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Hearing: 4, 5, 6, 7, 8, 11, 12, 13, 14 and 15 April 2005.

Date of Judgment: 11 May 2005.

Appearances: Dr. Sayers of Counsel, instructed by Whitehead Payne, Lawyers of PO Box 663, Nerang, Qld. 4211, appeared on behalf of the Applicant Mother/Wife.

Mr. O'Neill of Counsel, instructed by McCallum Mylne Lawyers of Level 2 Corporate Offices, Chevron Renaissance, 3240 Surfers Paradise Boulevard, Surfers Paradise, Qld. 4217, appeared on behalf of the Respondent Father/Husband.
Mr. Lapthorn of Counsel, instructed by Ms. J. McArdle, Solicitor of Legal Aid Queensland, 44 Herschel Street, Brisbane, Qld. 4000, appeared on behalf of the Children's Representative.

Name of Case:  D AND D
File Number:  BRF 1325 of 2002
Dates of Hearing:               4,5,6,7,8,11,12,13,14 and 15 April 2005
Date of Judgment:              11 May 2005
Coram:  Carmody J

Catchwords: FAMILY LAW – CHILDREN – No contact order – Best interests – Children’s wishes

PROPERTY SETTLEMENT – Alleged wastage or “negative contribution” – Elements – Standard and sufficiency of proof – Circumstantial case

Legislation:Family Law Act 1975 (Cth), ss 43, 60B(2), 65D, 68F(2), 72, 75(2), 79
Evidence Act 1995 (Cth), s 140

Cases considered: Antmann and Antmann (1980) FLC 90-908

Blatch v Archer (1774) 1 Cawp 63
Briginshaw and Briginshaw (1938) 60 CLR 336
Browne and Green (1999) FLC 92-873
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Clauson and Clauson (1995) FLC 92-595
Dickson and Dickson (1999) FLC 92-843
Evans and Marmont (1997) 42 NSWLR 70
G and G (Financial Provision: Equal Division) [2002] 2 FLR 1143
Hickey and Hickey (2003) FLC 93-143
Kennon and Kennon (1997) FLC 92-757
Kowaliw and Kowaliw (1981) FLC 91-092
Lambert and Lambert [2003] Fam 103 (UK)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Phillips and Phillips (2002) FLC 93-104
Re: Dillow’s Will Trusts, Lloyd’s Bank v Institute of Cancer Research (1964) 1 All ER 771
Re H and Ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192
Shewring and Shewring (1997) FLC 91-926
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
WK v SR (1997) FLC 92-787
Waters and Jurek (1995) FLC 92-635

The parties married in 1980 and separated in 2001. There were two children of the marriage aged 14 and 12 at the time of trial.

In relation to parenting issues, the children had not had contact with the father since the end of 2001. They have reliably and firmly stated that they do not want to have contact with the father. The mother sought final residence orders and sole responsibility for both the short and long term care, welfare and development of the children.

In relation to property settlement, whether the wife’s contribution-based share of the major asset in the pool, an undeveloped parcel of land on the Gold Coast, should be reduced by more than $300,000 in financial losses, including receivership and subdivision costs, allegedly incurred by her fraudulent or reckless economic conduct.

Held:

1. The husband was restrained from initiating any communication or contact with the children. The children’s strong opposition to contact was reflective of their best interests and consistent with the opinions of the expert witnesses and recommendation of the separate representative.
2. The husband was clearly in deep denial about the harmful impact of his past bad behaviour and, accordingly, is unable to begin the process of rebuilding a new relationship with his children on a proper and stronger foundation.

3. The husband's case was that the wife (a solicitor) and her new partner (a barrister) devised a complicated scheme to defeat his legitimate beneficial interests in the matrimonial property, acted unconscionably in a concerted effort to achieve that unlawful common objective, putting their intention into effect by means of the following acts of deception: (1) insinuating the barrister into the subdivision process in 2000, (2) establishing him as a secured creditor in 2001 via a joint loan commitment, (3) forging loan and related documents (or obtaining his signature on them by trickery), (4) fraudulently registering mortgages over properties, (5) inflating the joint indebtedness by false or unauthorised expenditures, (6) using unpaid rates on the mortgaged properties as a pretext for activating default provisions in a mortgage, (7) appointing a friendly and/or incompetent receiver, (8) installing the wife's uncle as the major unsecured creditor but retaining the registered mortgage in the barrister’s name, (9) unreasonably refusing to roll-over the bank loan and agreeing to pay penalty rate interest on the loan from the wife’s uncle, (10) obtaining vacant possession of the Gold Coast property to sideline the husband and gain control of the partnership assets, and (11) failing to disclose or produce relevant documents and information in the proceedings.
4. Stated in family law terms, the husband’s allegation is that the wife's conduct amounted to economic fault in the sense that, quite apart from its criminal character or moral culpability, it inflicted financial losses on the marriage partnership to the tune of $300,000.00 or more and that relevant concepts of justice and equity require her to shoulder full responsibility for them. In taking this position, the husband assumes the onus of proving a link between the alleged fault and the disputed liabilities.
5. Whatever legal category the husband’s allegations technically fall into, the only question to be decided for s 79 purposes is whether or not he has been able to prove the allegation that the value of the matrimonial assets were reduced as a result of the wife’s collusive or deceptive conduct.

6. As the alleging party, the husband had the onus of proving economic fault or wastage pursuant to s 140 Evidence Act 1995 (Cth) to the Briginshaw standard according to the respective power or capacity of the parties to adduce or contradict relevant evidence.

7. In family litigation, as in any other non-criminal case, is that the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove to it.

8.    Where proof of a fact in issue hinges on rational inferences based on circumstantial as distinct from direct evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case where the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation.
9.    In determining how financial losses should be shared by former spouses, greater emphasis is given these days to the equality and partnership concepts in a marriage. The reported decisions of the Full Court dealing with that issue make it clear that financial losses incurred by one or other of the parties to a marriage, whether jointly or severally, should ordinarily be shared in the same manner as any economic gains they make.
10. This approach simply gives practical recognition to the marriage vows. Married couples commit to each other for life. They promise to take and to hold for richer or poorer and for better or worse. They impliedly agree to accept the usual risks and unpredictable turns that marriage involves and to take the good with the bad.
11. The reported decisions in respect of applications for settlement of property under s 79 are unanimous that both parties should share the economic fruits, as well as the financial losses, incurred by either of them in the course of the marriage, although not necessarily equally : Kowaliw; Browne v Green.
12. However, s 79 can be called in aid and used to compensate the "innocent" party where liabilities are incurred mala fide, that is, with either the intent or effect of devaluing the accumulated wealth of a marriage or in breach of the marital obligation.
13. This is an acknowledged aspect of the broader concept of apportioning spousal liability for so-called wastage or "negative contribution".
14. Baker J identified two categories of exceptions to the general rule that marriage losses should be shared (although not necessarily equally) by the parties in Kowaliw. They are :
(a)   where one of the parties embarks upon a course of conduct designed to reduce or minimise the value of property; or
(b)   where a party acted recklessly, negligently or wantonly with property, the overall effect of which was to reduce or minimise its value.

15. The first limb of Baker J's formulation focuses on the financial consequences of intentional misconduct generally. The second concerns the effect of reckless, negligent or wanton dealings with marital property. Unless one or other of these conditions exist the general rule of shared liability for matrimonial debts and liabilities applies.
16. The point at which the party who recklessly or wantonly incurs debts or increases unsecured liabilities may be penalised for economic fault under the Kowaliw principle is not always easy to define as a concept or identify in practice, but debts incurred by one spouse during the marriage or even after separation with the express or implied assent of the other party fall outside the concept of waste.
17. Unravelling the marital arrangements and financial implications of a long marriage is no mean feat. It is even more complicated when the parties disagree about the nature and extent of each other's contributions. Couples who cannot agree about property settlement are entitled to seek a judicial decision without exposing themselves to a distasteful and undignified retrospective appraisal of their respective performance in the marriage over 19 years. Litigants should not be encouraged to indulge in a " . . . general rummage through the attic of their marriage to discover relics from the past" in an attempt to enhance their own role or diminish their former spouses.
18. Weighting contribution in exercising the adjustive jurisdiction does not really focus on the question "who did most of the work in the business and at home?" Nor is it concerned with comparing or contrasting a catalogue of the efforts each party made in their respective roles. The quality of the performance on either side is not the decisive factor. What matters most is the division of roles within the family unit and whether each party pulled their weight in their chosen or allocated sphere. In other words, parties generally get out according to what they each put in.
19. The answer to the central question here of how to place a fair value on the competing contributions of the parties lies, at least partly, in what the marital relationship is in the modern era. Marriage in this country is "an institution" involving the union of a man and a woman to the exclusion of all others entered into voluntarily for life: see s 43 of the Family Law Act 1975.
20. However, as already noted, the assessment of contribution is ultimately a discretionary process, regulated by the facts in a particular case.
21. The search of a judge in deciding a property case in this country is for a just and equitable solution. That solution in this case based on contribution alone to the date of separation is a 50/50 split. However, the wife's post-separation welfare contribution involving the housing and provision of all other physical and educational needs of two teenage girls caught in the middle of an acrimonious parental separation, entitles her to an extra 2.5 per cent.
22. Included in the mutual undertakings of people who marry each other is the promise, reflected in s 72 of the Act, to always maintain the other to the extent of their respective means and needs : cf. Evans and Marmont. Thus, notwithstanding the disparity in the ages, incomes and overall financial (including the superannuation) position of the parties, an upward adjustment of 10 per cent to the wife's contribution based entitlement is justified to help her meet future especially child-care related needs pursuant to s 79(4)(d) and (e).

This is a defended property settlement and parenting proceeding between the separated parties to an 18 year marriage.
The central question under s 65D is whether - after a hiatus of more than three years and in the face of strong resistance - regular contact between the father and his two daughters should be reinstated.
The major points of contention in the s 79 dispute are the value of the net property and how it is to be divided.

The contact issue

The father is a sixty-five year old manufacturer. The mother is a practising solicitor aged fifty. The parties met in 1980 and married in 1983. They separated in 2001 when the mother left the family home with their two children - A, now fourteen, and T, aged twelve.
The mother asserts that the marriage failed because of the constant strain of financial pressures, combined with the father's black moods and volatile temperament. She claims to have been the victim of a series of physical assaults by the father during the marriage in the presence or hearing of the children who, she says, were terrorised and traumatised by the father's behaviour.
The father categorically denies any acts of violence towards the mother prior to separation but admits mutually abusive domestic arguments.
The girls currently reside with the mother. Her household since early 2002 has included her new partner, who is a local barrister, and her uncle.
The father lives with his new partner on the Gold Coast.
The girls have not had any meaningful contact with their father since consent arrangements were suspended on 31 December 2001.
The father says both children have since rejected their father and want nothing further to do with him.
A temporary domestic violence order was made in favour of the mother and children on 23 November 2001.
The non-molestation orders were confirmed on 3 April 2002 and made operative to 22 November 2003. The wife’s partner was joined as a protected person at the same time. The orders were later extended for five years. The father was convicted and fined for breaches of these orders three times in 2002, twice in 2003 and once in 2004.
It is common ground that an assault by the father on the mother’s partner in the mother's apartment on 6 December 2001 was witnessed by the children. The father’s own account of the incident is recorded at page 4 of a psychiatric report prepared for the purposes of the proceedings in October 2004 as follows:
"He (the father) stated that on 6 December they celebrated their daughter's ([A’s]) birthday and [the mother] came over to have a cake with them, but left early at 6.20 pm allegedly to have dinner with a female solicitor. He became concerned when he could not raise his wife on the phone so he decided to go to her residence to check that she was okay. He stated that a week earlier one of his friends had followed [the mother] to find out where she lived. He took the children to the unit and got the manager to open the door. He stated that [the mother] told him not to go into the bedroom so he put the children into another bedroom and then found my dear friend [thewife’s partner] with his underpants on, I punched him a couple of times, he kicked me, I eventually picked him up and made him sit in the corner facing the wall, he looked around a few times so I slapped him and told him to turn around. After three hours he must have got out and called the police".
On another occasion, he chased the mother and children down the road in his car. That contravention was initially denied and had to be proved at a fully contested at trial in which both children were cross-examined at length in relation to the incident by the father's counsel.
During a separate incident the father verbally abused the mother, the wife’s partner and the wife’s uncle in front of the children.
The father further admits making indirect attempts to make contact with the children by sending flowers and greeting cards to them at school. He acknowledges this is wrong but says he is driven by frustration with court delays and the inability of the system to prevent the mother from alienating the children from him and the mother using her superior knowledge as a solicitor to technically out-manoeuvre him and manipulate the process to her forensic advantage.
He accepts that the children express strong opposition to future contact (even under supervision) but says that they would gradually warm to him if only their admittedly damaged relationship was given a chance by the court to heal.
The girls have attended the same private school on the Gold Coast since pre-school. They are in grades 7 and 5 respectively. Their most recent school progress reports indicate that they are slightly reserved, generally cheerful, well-mannered and polite children. Neither of them is recorded as having discussed these proceedings at school. However, the most recent report dated 13 May 2004 records both becoming distressed when issues or discussions involve their father.
In a family report prepared in August 2002, the family reporter sympathises with the father's sense of loss in respect of not being able to see the children but says at par 80 that:
" . . . It does seem to me that he is not showing sufficient empathy with the children's needs and feelings and until he does, and can demonstrate that he is sympathetic towards the children's state of emotional confusion, the children will not feel confident and comfortable enough to resume contact with him".
The family reporter considered that the only way the father could "make amends, so to speak, is to engage in individual counselling" which will "hopefully" bring him to a situation "of seeing matters in a different light". The family reporter expressed the view (at par 150) that the father was "not as child focused as he might be", and (at par 155), ". . . the time has now come for him to focus on the children's feelings, adjustment and needs".
The children refused to see the father as part of the family interview process. He found them to be genuinely fearful and distrustful and distressed at the thought of being forced into contact with him.
Accordingly, the family reporter recommended against ongoing - especially involuntary - contact until such time as the father had individual counselling to help him change his perception in relation to the children and help him "build bridges" with his daughters.
Attempts to implement these recommendations by the court failed because of the parties' inability to agree on an acceptable counsellor and disputes about the degree of the mother's participation in the counselling process envisaged by the family reporter.
The consultant psychiatrist records the children as giving similar family histories and noted at p 15 that both "were genuinely distressed by their father's actions during this time". Each spoke of witnessing the father's cruelty to animals and mistreatment of their mother, the maternal grandmother and great grandmother during the marriage.
The psychiatric report concludes that the girls have been significantly traumatised by their father's assault on the mother’s partner in December 2001 and his retention of them later that month.
His report states:
"These events, coupled with his cruelty to their pets and abuse of their mother prior to the breakdown of the marriage, and his attempts to see them since December 2001, have combined to make the girls exceedingly anxious about the prospect of having contact with their father. Both are extremely reluctant to see their father and I consider this to be a genuine fear rather than one imposed upon them. Both girls have features of post-traumatic stress disorder (PTSD) from the events of December 2001 and this is why they have been unable and unwilling to see their father. [T] also suffers from attention deficit hyperactivity disorder (ADHD) and sleep phobia".

The mental health expert assessed the father as a self-centred and fairly controlling man, with little understanding or insight into how his actions impact on his children. He genuinely believes that he has done nothing wrong and cannot see why the children do not want to have contact with him.
The doctor found that the father displays "fairly fixed paranoid views" about the mother and her partner and "has significant anti-social and narcissistic personality traits".

In his final paragraph at p 16, the psychiatrist expresses the view that:
"The girls . . . are extremely fearful of him and his potential for violence and as such are very opposed to having any contact with him. Too much time has passed with other traumatic events occurring during this period to attempt a therapeutic reconciliation between the girls and their father. This would only be attempted anyway if [the father] had more insight into his part of the problem and was willing to address his personality issues. Unfortunately, I doubt that [the father] will ever be in a position to gain such insight and his personality characteristics are so ingrained that it is unlikely that he will be able to change even if he was willing to do so. I cannot see any benefit from forcing the girls to have contact with their father against their will, and there is the possibility of significant psychological and emotional harm occurring if this happens".
The father’s performance in the witness box tended to confirm this evaluation. For instance, he made it clear that, while he is prepared to undergo counselling as a pre-condition to contact, he does not believe that he actually needs it and is firmly of the view that if he has to have it then the rest of the family should too.
The father dismisses previous attempts to maintain indirect contact with his children as the understandable and harmless actions of a parent estranged from his children at a loss, each and every day, without them in his life.
The evidence suggests that T has been too scared to sleep in her own room for a number of years now due to the trauma associated with the father's DVO violations. She apparently insists on sleeping in her sister's room on a makeshift mattress. She is also described as being hyper-vigilant and anxious.
T has been treated by a registered psychologist, with more than 25 years' experience in clinical practice, since February 2004 for treatment of her sleeping problems and related anxieties. The psychologist explains in his report dated 27 September 2004 that T is " . . . extremely fearful that her father will at some point break into the house and either kidnap her or in some other way cause severe problems within the household. This fear of her father is the root cause of why she has great difficulty sleeping and needs the comfort of either her mother or sister close by".
None of the therapies used have proved successful. The psychologist reports that of all the children he has treated with similar conditions in the last 20 years T is "undoubtedly the most resistant" to treatment. He observed, however, that her condition improves when she is away from the Gold Coast on holidays.
The psychologist also notes that T keeps a constant lookout for her father's blue van and the extreme agitation this gives rise to exacerbates her sleeping problems.
The psychologist makes it plain in his report that T needs ongoing counselling and support and that her condition will not resolve until the parental conflict is resolved and the fears she holds about her father abate. Importantly, he said in cross-examination that forced reintroduction of contact at this stage would have a decidedly negative overall effect and may actually hamper the chances of future reconciliation between T and her father.
The mother seeks final residence orders and sole responsibility for both the short and long term care, welfare and development of the children. She no longer encourages contact and does not believe that it is in the children's best interests, and blames the father's total lack of insight and past bad behaviour for the situation. However, she says, and I accept, that she is not opposed to the children re-establishing a relationship with the father if they want to some time in the future.

The paramountcy principle and other relevant considerations

The law in this country rightly places a high importance on the maintenance of filial relationships and parental ties. This is based on the assumption that in most cases continuing contact, despite short term problems, is likely to be more beneficial than detrimental in the long run. These sentiments find legislative expression in sub-sections 60B(2)(a), (b) and (c). Every attempt should be made to preserve a meaningful relationship between family members. However, strictly speaking, there is no legal presumption for or against contact. Popular beliefs or social policy objectives must yield to specific evidence to the contrary.
The ultimate determinant in intractable contact cases, as with other parenting proceedings under Pt VII, is the best interests of the children concerned. The aim is to achieve individual justice.
The best interests' solution is to be found in the balance of the relevant considerations in s 68F(2).
Best interests are values not facts. They are (as the High Court has pointed out) not susceptible to definite proof or scientific demonstration. There is no single or simple answer. The same body of evidence may produce opposite but equally valid results. In some cases the only option is a choice between two or more imperfect alternatives. The least worst situation may be the best available.
Contact will rarely be wholly negative. There will usually be some practical benefit in it. Even in the context of family violence, for instance, it can provide the opportunity for reconciling differences and repairing damaged relationships. There are, however, exceptional cases where contact may do more overall harm than good. This occurs where there is little chance of changing an implacable situation or distresses the children too much.
In this case, the children are old and mature enough to express their true feelings. Their current wishes are not in dispute. They are clearly contact averse and the preponderance of expert opinion suggests that any forced re-introduction of contact at this point in time involves a real risk of harm.
Counsel for the child representative reluctantly supports the mother's position over the father's and recommends that a specific issues order be made for the mother to be responsible for both the short and long term care, welfare and development of the children on the basis that there is little likelihood that these parents will be able to co-operate with each other if, as he proposes, the father's application for contact is dismissed.
He submits that the children's wishes, their emotional needs and the father's apparent inability to meet them are the weightiest best interest factors. They, together with the exposure of the children to post-separation violence, the need to protect them against the father's tendency to embroil them in the parental conflict by denigrating the mother and her partner, as well as the girls' need for stability, certainty, personal security and finality, he says all point to the termination of all forms of involuntary contact.
The father's proposal for the therapeutic reintroduction of contact under the management and guidance of professionals, according to Counsel for the child representative, has been tried and failed, has little prospects of success, and would only prolong the children's anxiety for little or no reward. He also suggests that such an order would be difficult to implement, would require the involvement of an, as yet, unidentified specialist counsellor, and would be costly not only for the parties but also on the public to the extent of the ongoing involvement of the Separate Representative.
These are all highly persuasive arguments against the forced or graduated reintroduction of contact.
While the children's adverse views of their father are inevitably influenced by the mother's own low opinion of him, they are also substantially informed by their own painful experiences. It is not necessary for me to make any specific finding about violence within the marriage and, therefore, I refrain from doing so. However, I accept the mother's testimony, which is consistent with the reported statements of the children, that they have witnessed episodes of violent outbursts in the post-separation period and see their father as an unpredictable parent who is prone to hurting others, including their primary carer.
The reluctance of the children in these circumstances to have anything to do with their father appears to have a firm basis.
I readily acknowledge that children can - and should, in most cases, be encouraged and sometimes even forced to - bond with the most unfit and inadequate of parents for their own long term good but the relationship between these girls and their father is currently in tatters and any residual attachment that these particular children have to their father is tenuous. The experts hold out little hope for rehabilitation even with professional help.
While I think that the mother would abide by, and cope with, the demands of contact in this difficult case, I am reasonably satisfied that the children would not.
The history of high conflict between the parents and the long-standing emotional fragility and contact-resistant attitude of the children make this one of those rare and regrettable cases where the best interests of the children are most likely to be served by an order for no contact and by leaving it to the girls to resume their relationship with the father on their own terms and in their own time.
The father appears to be genuinely attached to his children. He seems to want to rebuild a meaningful relationship with them. I hope he can. They are irreplaceable treasures. However, he does not currently appear to understand or accept their vulnerabilities and, consequently, has done little to alleviate their concerns. He neither understands nor respects their wishes. He clings to the false belief that they have been brainwashed by the mother.
On balance, re-installing contact seems to have little value at this stage of the girls' development. It would be too disruptive and distressing for the children. I am sure that it would be deleterious and even counter-productive. The status quo ensures stability, safety and a much needed sense of security.
The repeated breaches of the domestic violence orders and the father's post-separation violence in the children's presence are a serious reflection on his attitudes to the responsibilities and duties of parenthood as well as his ability to identify and adequately provide for the emotional needs of his children.
A parent's capacity for violence is a relevant factor in assessing character and suitability as a carer. As Professor Patrick Parkinson points out in his article Custody, Access and Domestic Violence (1995) 9 Australian Journal of Family Law, 41 at 56 :
"Violence is a window on the soul. It reveals much about the character of the person. His or her capacity to control anger, to resolve conflict peacefully, to deal with frustration . . . It may be indicative of a tendency to dominate, control and coerce the children rather than to nurture and empower them. It might reveal much to a court about how well the parent can cope with crises in parenting, and other stressors, and about his or her capacity for empathy".
Where, as here, the non-residential parent has a tendency to be violent and is assessed as having a controlling and domineering personality with narcissistic traits, his ability to recognise his past conduct, be aware of the need to change and make genuine efforts to do so are weighty considerations. Good intentions without a track record of proper behaviour to back them up, in my opinion, are insufficient.
The father refuses to fully accept responsibility for his past violence or acknowledge the ill-effects it has had on the children. He does not see any need to change his behavioural patterns and, in my judgment, has no genuine desire to do so. The promising rhetoric in pars 39, 53 - 54, 58, 61-62 and 67 of his affidavit filed 5 November 2004 is not matched by action.
It is clear from the statements he made to the psychiatrist that he is in deep denial about the harmful impact of his past bad behaviour on the mother and children, and seems to be unable to face the awful truth. Until he does, he cannot play a positive role in undoing the damage he has done or assist his children to move on and repair and rebuild a new relationship with them on proper and stronger foundations.
In my view, the children's strong opposition to contact is reflective of their best interests and consistent with the expert opinions and attitude of the Children's Representative.
Counsel for the child representative argued for a clean break. He says even indirect contact through the post should be forbidden. This is an unusual position for a Separate Representative to take and should not be acceded to lightly.
Severing all connection with the father has its own risks to the long term development and well-being of the children. A man is much more than the worst thing he has ever done.[1] A sense of origin and identity is a basic and important element of the children's self-esteem. Indirect communications can keep even the smallest chances of reconciliation alive.
[1] Nothing but the Truth by John Kani.
However, I am reasonably satisfied that I would be acting contrary to the children's implied wishes if I made an order allowing the father to initiate correspondence with them. The father has a history of being unable to restrain himself from attempting to make unwanted overtures to the children and does not seem to appreciate the havoc he creates in doing so. There is, in my view, a real risk that he would misuse the opportunity to promote his own cause and is unlikely to be able to resist the temptation to denigrate or criticise the mother. This would be highly improper and unsettling for the children.
It is an inappropriate use of the services of a publicly funded Separate Representative to act as a censor. Vetting the father's correspondence is not an ongoing responsibility I would impose on the mother either.
For these reasons, I propose to restrain the father from initiating any communication or contact with the children at all and will leave it to them to do so in their own way and in their own time if and when they are ready.
Accordingly, I refuse the father's application for direct contact and order as follows:
(1)That the MOTHER be responsible for the short term and long term care, welfare and development of the children A and T.
(2)That the FATHER not have any contact with the children save and except for contact that is initiated by the children.
(3)That the FATHER be restrained from initiating any communication or contact with the children directly or indirectly through any third person or institution.
(4)That the MOTHER keep the FATHER informed of any change in the name of the school that each child attends from time to time.
(5)That the MOTHER forthwith make all necessary arrangements, including the payment of any costs involved, with the children's school or schools for copies of the children's report cards to be forwarded to the FATHER when they are issued by the school.
(6)That the MOTHER keep the FATHER informed of any significant issues arising in relation to the children's health or educational needs by communicating such information in writing to the FATHER.
(7)That each party provide to the other a postal address for the purposes of any communication pursuant to the terms of these Orders and the MOTHER keep the children informed of the FATHER's postal address and any telephone contact numbers he may provide from time to time.
(8)That pursuant to Section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders as set out in Annexure A to the Orders that issue.

Property matters

At issue under this head is whether the property of the parties which is made up mainly of a proposed land subdivision on the Gold Coast and, depending on development approval, is valued at anywhere between $800,000.00 and $1.6 million, should be divided 75-85 per cent to the wife as she proposes or 55-60 to the husband as he argues.
The wife's claim is based on allegedly greater past contribution and future needs.
The husband contends that a just and equitable order would see him receive or retain the lion's share of the net pool to compensate him for financial losses caused by the economic misconduct of the wife which, he says, has needlessly increased marital liabilities by more than $300,000.00 since separation.

Relevant History

The parties cohabited for 19 years. Both juggled work commitments and child-care responsibilities to varying degrees throughout that period. They pooled their income and resources and shared household and living expenses.
The parties separated in late 2001. The husband continued in occupation of the former matrimonial home rent-free until his court ordered removal in September 2003. The wife moved into alternative accommodation with the children at separation and has been solely responsible for their physical, developmental and emotional needs ever since.
The wife was admitted as a solicitor in 1980. From 1987 to 1997 she ran a private legal practice. Thereafter, she worked as an employed solicitor and recently joined a Gold Coast firm as a partner.
The husband is a furniture designer and manufacturer by trade. The parties operated a partnership with mixed success from 1984 until 2002. The husband did the trade work while the wife looked after the administrative side of the business.
Exhibit 27 shows that reported tax losses in that period were $281,000.00 compared with profits of $21,000.00. It is not clear whether these figures reflect the actual performance of the firm as the wife claims, or are the result of creative accounting techniques, as the husband contends.
In 1983 the parties acquired an unencumbered property in North Queensland. The following year they paid $80,000.00 for 10 acres of vacant land on the Gold Coast. The adjoining block of 11 acres was bought in 1997 for its subdivision potential.
The former matrimonial home was built on the first block in 1986.
In 1999 the parties engaged surveyors to commence work on an application to develop both blocks of land. Later that year the parties refinanced a number of bank loans. Sixty-seven per cent (67%) of the consolidated loan of $430,000.00 related to the wife’s partnership in her legal practice. The loan was secured by a first mortgage over both blocks of land.
The wife’s current partner established a line of credit, capped at $75,000.00, in February 2001 to allow the parties to pay for costs associated with the subdivision of the land.
Subsequently, all correspondence from the surveyors concerning the subdivision application and related invoices were either sent directly or copied to the wife’s current partner in North Queensland.
The indebtedness to the wife’s current partner was formally acknowledged in a Deed of Loan and secured by a first mortgage over the North Queensland property and a second mortgage over the Gold Coast land.
The husband challenges the bona fides of the loan transaction with the wife’s current partner and disputes the authenticity of the supporting documentation.
Until October 2001 the bank loan repayments were met out of joint funds by monthly instalments in arrears. On roll-over, the new loan amount of $495,000.00 included prepaid interest for 12 months.

The bank later agreed to a variation of loan conditions to allow the parties to subdivide the secured property on the Gold Coast and a Deed of Priority was registered so that the new bank mortgage over both blocks of land took precedence over the wife’s current partner’s mortgage.
A valuation prepared for the bank in September 2001 assessed the current market value of the Gold Coast property, including the residence, at $820,000.00 without, and at $1.66 million with, subdivision approval.
By 30 April 2002 the wife’s current partner’s loan facility was fully drawn at $76,000.00 based on payments to the surveyors between March 2001 and October 2001 and accumulating interest at the penalty rate of 13 per cent.
A solicitor was appointed receiver and manager by the wife’s current partner under the mortgages he held over the Gold Coast property and the North Queensland land as a result of the parties' failure to comply with a Notice of Demand to pay about $7,000.00 in unpaid rates owing to the Gold Coast City Council and to the council responsible for the North Queensland property.
The balance of the wife’s current partner’s loan was later revised upwards to $98,483.00 on the basis of loan repayments to the bank in 2000 (which pre-dated the wife’s current partner’s loan and were outside the stated purpose of the loan), accrued interest at the rate of $900.00 per month, a $20,000.00 payment to settle an unrelated judgment debt of the parties and an additional $2,000.00 in projected receiver's costs.
The wife refused to roll-over the bank loan facility for a further year and obtained a Family Court injunction to restrain the husband from doing so himself. This triggered default provisions and incurred a penalty rate of interest of 13.2 per cent up from 9.5 per cent.
Shortly afterwards the wife’s current partner purchased the bank loan for $495,000.00 with funds borrowed from family and friends and became the registered first mortgagee of the Gold Coast land. However, the real creditor and beneficial owner of that mortgage is said to be the wife's uncle, who is the apparent source of $350,000.00 of the money needed by the wife’s current partner to pay out the bank.
The parties contracted to sell the North Queensland property on 4 December 2002 for $100,000.00 with the aim of fully discharging their liability under the wife’s current partner’s loan.
The sale of the North Queensland property was completed in January 2003. The net proceeds were about $7,900.00 short of the balance of the revised loan from the wife’s current partner after payment of outstanding local authority rates. This meant that the receivership stayed in place over the Gold Coast property.
The receiver later took physical control of the Gold Coast property on 20 September 2003 under Supreme Court orders and thus became the involuntary bailee of various items of plant and equipment in the workshop of the husband’s business and the matrimonial property left in the former matrimonial home. The receiver was later appointed receiver of the machinery of the husband’s business.
The husband was declared bankrupt on 7 July 2004 and his interests in the disputed assets that were not in the hands of the receiver automatically vested in the trustee in bankruptcy.

The adjustive process

Professor Patrick Parkinson identifies "intention, contribution, reliance, partnership and need" as the five principal justifications for property alteration between former spouses. As he explains it:
"Intention issues arise when the parties' clear enough intention with regard to the ownership of the property are not reflected in the legal title. Contribution issues arise when the ownership of the property does not reflect fairly the contributions made by the other party which have a nexus with the acquisition, maintenance or improvement of the property. Reliance issues arise from such factors as the sacrifices that mostly women make by adjusting their workforce participation to care for the home and family on an assumption about the stability and permanence of the relationship. Partnership as a justification approaches the issue of property alteration in terms of the commitment to equality and the sharing implicit in the notion of marriage as a joining of lives. Need as a justification flows from the commitment of lifelong mutual support which has traditionally been inherent in the marital relationship. This justification is different from reliance because it assumes a causal link between the marriage and the reason for the need." [2]
[2] "Quantifying the Homemaker Contribution in Family Property Law" (2003) 31 Fam L Rev 1 at 8.
This view is generally reflected in the property settlement provisions in Part VIII of the Family Law Act. The central section is s 79. The aim is to finally and fairly terminate financial relations between the parties by determining the interests of former spouses in their property within the meaning of subsec 79(2) in such a way as to achieve economic justice between them. The ultimate judgment as to what is just and equitable in a particular case is informed and predominantly, if not exclusively, controlled by sub-s (4) of s 79.
Pars (a) and (b) of sub-s (4) relate to the past contribution of the parties, direct and indirect, to their accumulated wealth, whereas par (c) refers to the contribution made by each of them to the overall welfare of the family, including as parent or homemaker. The contribution in each category, which need not, and often will not be financial, must - not merely may - be considered.
The present and future needs, together with other relevant s 75(2) factors, including the means, resources and earning capacities - actual and potential - of the parties are also requisite considerations by virtue of par (e). Other subsidiary matters are mentioned in pars (d), (f), and (g) of sub-s (4).
The Act does not indicate what weight is to be given to different considerations, or how competing contributions and circumstances should be resolved. These things are matters of discretion.
The orthodox approach to exercising the adjustive jurisdiction under s 79 involves four indispensable and interrelated steps: Hickey (2003) FLC 93-143.
The first is to identify and value the parties' net property and financial resources at the date of hearing.
The second is to assess the entitlements of each party based on pars (a), (b) and (c) contribution.
The third is to decide whether there should be any adjustment to the contribution-based entitlement by virtue of any other relevant factors, such as those in s 75(2).
The second and third steps do not involve an accounting or audit type process undertaken in the same way as the preparation of a balance sheet in which there are a series of debits and credits : Dickson (1999) FLC 92-843 at 85,869.
The fourth and final step requires the Court to consider the provisional outcome of the first three steps, and to make orders which, in both structure and substance, achieve a just and equitable overall result: Phillips (2002) FLC 93-104 at par 66.
The overall fairness of final property orders depends not so much on the percentage assessment, but on the real impact they have in actual money terms : Clauson (1995) FLC 92-595.

The available pool

The distributable estate is made up entirely of items of real and personal property in the current possession of one or other of the parties, the trustee in bankruptcy and the receiver.
The current market value of the Gold Coast property is uncertain due to the developmental approval delay, but neither party sought an adjournment for the purposes of ascertaining their current market value and have asked me, through their counsel, to make orders, as best I can, apportioning the total property by percentage awards, regardless of the actual dollar value that it represents.
The parties agree, for present purposes, that their assets consist of the following:
Property in the parties' possession
Wife
-            Furniture and jewellery, etc.  $ 40,000.00
-            Partnership in law firm  $ 45,000.00
-            Superannuation  $ 19,189.00
$104,189.00
========
Husband
-            Motor vehicle  $   11,000.00
-            Plant and equipment  $   13,380.00
$   24,380.00
=======
Property held by Third Parties
Trustee in Bankruptcy
-            Chattels from former matrimonial
home and partnership business  $ 50,000.00
=======
Receiver
-            The Gold Coast property  $800,000.00 - $1,600,000.00
-            Plant and Equipment  $    4,325.00     $      4,325.00
$804,325.00 -   $1,604,325.00  =========      =========
The plant and equipment credited to the husband is the value of earthmoving equipment and other items he admits having sold post-separation.
The whereabouts and value of the balance of the property from the former matrimonial home and partnership business are uncertain.
The husband was in sole occupation of the Gold Coast property and manufacturing workshop for nearly two years after separation. The wife returned to the former matrimonial home in October 2001 and again in 2003. The premises were broken into between September and November 2003. The wife accuses the husband of being responsible for this and for unlawfully removing matrimonial and partnership property. The husband accuses the wife of doing the same thing.
Some of the partnership stock and manufacturing tools were removed by the husband with the court's permission just before his bankruptcy in 2004. What is left of the partnership plant and equipment was locked up by the receiver in the work-shed one of the Gold Coast blocks after the break-in. It is valued at $4,325.00. The rest of the contents of the former matrimonial home is stored in a facility on the Gold Coast. Its value is unascertained.
The result is that I cannot tell now where a lot of the property is or who has control of it.
Both parties claim the chattels in the storage facility. The wife says they have a nominal value or, at least, are not worth any more than what the husband "stole". However, whatever suspicions the wife (and receiver) may hold, and while there is some supporting circumstantial evidence, the theft allegation against the husband is unproven. In any case, the husband asserts that he acquired a lot of the stored items after separation.
The best I can do is to give the matrimonial and business assets the value they had at the date of separation and make orders allowing each of the parties to retain whatever property they currently hold subject to the interests of the trustee and receiver and divide the residue equally.
Another disputed asset is the wife's interest in a Brisbane restaurant. The wife inherited an apartment in Melbourne from her grandmother about four months before separation. She mortgaged it in 2002 as security for a $112,000.00 bank loan the wife’s current partner took out to buy into the Brisbane restaurant.
To comply with the mortgagee's requirements, the wife and her current partner formed a partnership which owns 20 of the 115 units in the unit trust that operates the restaurant. The wife disavows any proprietary interest in the restaurant business itself and, at best, probably has an equitable right to a distribution of any profits the unit trust makes from its trading activities.
The restaurant is currently running at a substantial loss and, according to the wife’s partner, even with the accumulated goodwill of nearly $500,000.00, the total equity of the unit holders in the trust currently stands at minus $91,661.00.
The Melbourne apartment was sold in October 2002. The net proceeds of $110,000.00 was retained by the wife and used to clear the restaurant debt and advance $40,000.00 to the wife’s partner. Nonetheless, the wife says that she does not really regard her partner as a current debtor of hers. It is clear, however, that she has applied what was technically matrimonial property to her own use, albeit for her partner’s benefit, in 2002 and that her investment in the restaurant unit trust is a contingent financial resource.
The proceeds of the Melbourne apartment should properly be quarantined as the separate property or a sole contribution asset of the wife for s 79 purposes and her restaurant interest treated as a relevant s 75(2) circumstance.

Liabilities and alleged wastage

The only undisputed matrimonial liabilities are the costs of the bankruptcy which, according to Exhibit 29, are $20,649.00.
The wife has the following uncontroversial personal liabilities: an unquantified 2005 tax debt; credit card debts of $3,185.00; debt to partner due on 1 July 2005 of $45,000.00; and a QLS deductible of $8,032.00.
The current balance of the debt to the wife’s uncle is estimated for hearing purposes at $675,000.00. By November 2005 the balance owing to the wife’s uncle will be in the order of $690,000.00 based on default interest accruing at 13.2 per cent or $65,000.00 odd per annum since December 2002. The costs of receivership to 11 March 2005 total $225,196.00. Thus, the only chance of a surplus is if the land is sold by the receiver with subdivision approval.
Both the surveyor and receiver anticipate subdivision approval being granted within the next three months. The trustee anticipates that when the Gold Coast land is sold with subdivision approval and the parties' liabilities are discharged, there will be a substantial residual which, on current indications, is likely to be in the range of $750,000.00 to $800,000.00.
The husband says that the wife’s uncle’s loan and receivership costs should either be excluded from s 79 calculations altogether or allocated wholly and solely to the wife. Alternatively, he submits that their value should be notionally offset against the wife's contribution-based entitlement under to so-called negative contribution doctrine or by adjustment under s 75(2)(o).
The husband’s stance is based on the allegation or suspicion that the wife and her current partner were romantically involved prior to separation, perhaps as early as the year 2000, and decided to take effective control over the Gold Coast land so that they could complete the subdivision themselves (at least to the approval stage) and transfer the equity in the property to the wife’s current partner and, thereby, reduce the net asset value of the parties' property for settlement purposes. He believes that the wife, her partner and her uncle are in league with each other and hold the mortgages and loan liabilities as undisclosed resulting trustees for the wife and that the beneficial interest will somehow revert to her after the family proceedings have been finalised.
This, he says, amounts to a civil conspiracy to defraud which can be established by inference based on acts allegedly done in its furtherance.
The husband's case, more particularly, is that the wife and her partner devised a complicated scheme to defeat his legitimate economic interests in the matrimonial property, acted unconscionably in a concerted effort to achieve that unlawful common objective, and put their intention into effect by means of the following acts of deception: (1) insinuating the wife’s partner into the subdivision process in 2000, (2) establishing him as a secured creditor in 2001 via a joint loan commitment, (3) forging loan and related documents (or obtaining his own signature on them by trickery), (4) fraudulently registering mortgages over the North Queensland and Gold Coast properties, (5) inflating the joint indebtedness to the wife’s partner from $75,000.00 to $79,000.00 by false or unauthorised expenditures so that there would be a deficit between the net proceeds of sale of the North Queensland property and the outstanding balance of the loan, (6) using unpaid rates on the mortgaged properties as a pretext for activating default provisions, (7) appointing a friendly and/or incompetent receiver, (8) installing the wife's uncle as the major unsecured creditor[3] but retaining the registered mortgage in the wife’s partner’s name, (9) unreasonably refusing to roll-over the bank loan and agreeing to pay penalty rate interest on the loan from the wife’s uncle, (10) obtaining vacant possession of the Gold Coast property to sideline the husband and gain control of the partnership assets, and (11) failing to disclose or produce relevant documents and information in the proceedings.
[3]The husband suspects that the wife actually provided the loan monies attributed to her uncle in part from the $158,000.00 she received from the sale of her grandmother's Melbourne flat in October 2002. See par 144 of his affidavit of 7 February 2005. However, the wife says the proceeds were used by her to fund the buy-in of the Brisbane restaurant.
In determining how financial losses should be shared by former spouses, greater emphasis is given these days to the equality and partnership concepts in a marriage. The reported decisions of the Full Court dealing with that issue make it clear that financial losses incurred by one or other of the parties to a marriage, whether jointly or severally, should ordinarily be shared in the same manner as any economic gains they make.[4]
[4] Browne v Green (1999) FLC 92-873 at 86,359.
This approach simply gives practical recognition to the marriage vows. Married couples commit to each other for life. They promise to take and to hold for richer or poorer and for better or worse. They impliedly agree to accept the usual risks and unpredictable turns that marriage involves and to take the good with the bad.
However, s 79 can be called in aid and used to compensate the "innocent" party where liabilities are incurred mala fide, that is, with either the intent or effect of devaluing the accumulated wealth of a marriage or in breach of the marital obligation.
This is an acknowledged aspect of the broader concept of apportioning spousal liability for so-called wastage or "negative contribution".[5]
[5]cf. Antmann (1980) FLC 90-908, where the use of this term was disapproved for its tendency to confuse rather than clarify the general principle.
When exercised in this way, the adjustive power is used compensorily not punitively.
Baker J identified two categories of exceptions to the general rule that marriage losses should be shared (although not necessarily equally) by the parties in Kowaliw [6]. They are :
(a)where one of the parties embarks upon a course of conduct designed to reduce or minimise the value of property; or
(b)where a party acted recklessly, negligently or wantonly with property, the overall effect of which was to reduce or minimise its value.
[6] (1981) FLC 91-092 at 76,643-644.
The first limb of Baker J's formulation focuses on the financial consequences of intentional misconduct generally. The second concerns the effect of reckless, negligent or wanton dealings with marital property. Unless one or other of these conditions exist the general rule of shared liability for matrimonial debts and liabilities applies.
Debts incurred by one spouse during the marriage or even after separation with the express or implied assent of the other party fall outside the concept of waste in the Kowaliw sense.
The point at which the party who recklessly or wantonly incurs debts or increases unsecured liabilities may be penalised for economic fault under the Kowaliw principle is not always easy to define as a concept or identify in practice.
Thus, the husband's allegation stated in family law terms is that the wife's conduct amounted to economic fault in the sense that, quite apart from its criminal character or moral culpability, it inflicted financial losses on the marriage partnership to the tune of $300,000.00 or more and that relevant concepts of justice and equity require her to shoulder full responsibility for them. In taking this position, the husband assumes the onus of proving a link between the alleged fault and the disputed liabilities.

The standard of proof

Conspiracy, forgery and/or fraudulent wastage allegations against two officers of the court are among the most serious that a party can make in this Court. They are so grave, in fact, that the law requires the alleging party to prove them to a demanding standard of probability. Inexact proofs, indefinite testimony, or indirect inferences will not do.[7]
[7]WK v SR (1997) FLC 92-787 at 84,690, 84,694, cited with approval in Re W (Sex abuse: standard of proof) (2004) FLC 93-192. See also Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.
The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.
In his famous dictum in Briginshaw v Briginshaw, a divorce case involving alleged adultery, Dixon J refers to proof as being the feeling of actual persuasion of the occurrence of a disputed event or the existence of a contested fact.[8]
[8] (1938) 60 CLR 336 at 361-2.
His Honour noted that at common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the decision maker. The same applies today under the statutory formulation. But, in attempting to describe what is needed to prove an issue to the reasonable satisfaction of a decision-maker, his Honour seems to suggest that the standard itself is a mathematically variable one depending on such considerations as the seriousness of the allegation, the inherent unlikelihood of it occurring and the gravity of the potential consequences.
However, as the following paragraph from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd clearly shows, the High Court does not currently see the civil standard as a sliding scale :
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct".[9]
[9] (1992) 110 ALR 449 at 449-450.
This passage makes it plain that there is no special standard of proof in civil matters where criminal or other serious misconduct is alleged. The considerations mentioned by Dixon J in Briginshaw appear to refer to the weight or strength of evidence a party has to adduce in order to prove a fact in issue on the balance of probabilities. In other words, they relate to the quantum as opposed to the standard of proof required and are taken into account principally because the more serious an allegation the less likely it is to occur.
Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re H and Ors (Minors) (Sexual Abuse: Standard of Proof)[10] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[10] [1996] AC 563 at 586.
What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [11]
[11]Re: Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw [12] and in the light of the parties' respective power or capacity to produce or contradict it. [13]
[12] See generally, A. Ligertwood, Australian Evidence, 4^th Edition, Butterworths, 2004 at p. 82-83.
[13]Blatch v Archer (1774) 1 Cawp 63 at 65; 98 ER 969 at 970. See also Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330[134].
The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.
Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.
Whatever legal category the husband's allegations technically fall into, the only question for me to decide for s 79 purposes is whether or not he has proved to the statutory standard fixed by s 140 of the Commonwealth Evidence Act that the value of the matrimonial assets has been reduced as a result of the wife's deliberate or, alternatively, reckless, negligent or wanton misconduct.
I am reasonably satisfied in the Briginshaw sense that :
(a)the wife was largely responsible for the parties' financial affairs and partnership correspondence during the marriage because of the husband’s language and literary limitations;
(b)the wife was authorised by her husband to sign his name on partnership letters and routinely did so;
(c)on 14 October 2000, that is, more than a year before final separation, the wife’s partner rented a storage facility on the Gold Coast for and on behalf of the wife;
(d)as at 1 March 2001, the wife honestly, but mistakenly, believed that the North Queensland property was worth $40,000.00 and that at that time the Gold Coast blocks of land were probably worth more than $500,000.00 each;
(e)notwithstanding the primacy of her responsibility to financially support the children of the marriage, the wife could probably have found the money needed to remedy the default on the loan from her current partner and making up the difference between the North Queensland property proceeds and the balance of the loan from her current partner as at 23 December 2002. She had a good income, no ongoing periodic loan commitments or other hefty recurrent expenditures, access to family funds and a substantial tax refund available to her. At the very least, she could have put her hands on enough to pay her share.
But, that having been said, so too, according to his evidence, could the husband if he had wanted to. It seems to me that this couple, both unreasonably, refused or failed to take the steps needed to protect their assets from the clutches of circling creditors. There seemed to be a mutual attitude that the one would not unless the other did also. Regrettably, it is not uncommon for this view to be taken and maintained towards each other by separating spouses.
I am not, however, reasonably satisfied to the requisite standard that :
(a)The wife and her current partner commenced their intimate relationship prior to final separation. The rental of the storage shed, the wife’s current partner’s closer than usual involvement in the parties' development plans and financial affairs, and the restaurant deal, tend to suggest that they might have, but this cluster of suspicious facts lend themselves just as easily to innocent interpretations. Some of them are mentioned by Counsel for the wife in his written submissions at pars 28(a) - (g). It is common ground that the relationship between these parties and the wife’s current partner dates back to 1983 and that they kept in regular contact with each other in the years since then. Both the wife and her current partner categorically deny any love affair before 2002. There is no direct evidence suggesting otherwise. Not even the reinforcing effect of the combined force of the inferential facts pointing in the other direction are strong enough in the context of this case for me to find to the contrary.
(b)The loan from the wife’s current partner and associated mortgage documents were forged or obtained and registered by deception as part of an ongoing conspiracy between the wife and her current partner. It is not contested that the parties received the benefit of nearly $76,000.00 advanced by the wife’s partner between 2000 and 2002. Most payments were made to the surveyor or sub-contractors used for subdivision works on one of the Gold Coast blocks of land. The parties were fully extended at the time and having difficulty meeting the monthly mortgage instalments on the bank loan. But for the loan from the wife’s current partner, the subdivision project would have probably ground to a halt.
The husband certainly does not suggest that he had access to any alternative source of funds during that period but does deny having any personal knowledge of or making any direct claim against the the wife’s current partner’s loan facility.
However, his conduct before January 2003, when the allegations of forgery and fraud were first aired, is inconsistent with the asserted ignorance of the wife’s current partner’s loan.
The husband must have been aware of the subdivision works and the progress of the development approval application in 2001 - 2002, but says he never thought about whether or how relevant accounts were being paid. He did not seem to raise an eyebrow when he (as he probably did) received Ex, 18 from the surveyor.
The solicitors acting on behalf of the husband refer to the loan in correspondence dated 19 December 2001 and seek particulars without specifically denying any knowledge of its existence.
The Form 17 the husband filed in 2002 also mentions the mortgage to the wife’s current partner.
In October 2002, the husband offered to "buy out" the mortgage (Ex. 21), with no hint of a dispute as to its validity.
Thus, to the extent that it is necessary to do so, I accept the veracity of par 153 of the wife's main affidavit in relation to the circumstances of the wife’s current partner’s loan and the security documents and find that the parties jointly approached the wife’s current partner for the loan.
The husband seems to want to have it both ways in relation to the forgery allegation. He did not even raise the allegation either in legal correspondence or filed material until after the North Queensland property was sold. Since then, he has consistently denied the genuineness of his signature on the loan and registered security documents.
In his affidavit and oral evidence, the husband points the accusing finger directly at the wife. And the accusation was unequivocally and repeatedly put to her in cross-examination. However, in his final address, Counsel for the husband floated trickery as an alternative explanation to forgery without even having put it to the wife in cross-examination. He suggested that his client may have been misled by the wife into signing the forms unwittingly or without realising their true character (just as he alleges (and she denies) happened in relation to the transfer of the motor vehicle registration form in September 2001).
The wife swears that there was no forgery or any other form of deceit involved.
The handwriting expert prepared two reports in which he expresses the opinion that all the disputed signatures were written by the one and same writer, do not show any signs of forgery, and have the characteristics of genuine signatures. The handwriting expert confirmed his opinion in the witness-box and said that he ”completely" believes that the husband was the author of the disputed signatures.
A law clerk employed in the wife's legal firm was the attesting justice of the peace. She says that she never witnesses documents unless they were signed in her presence. Evidence of tendency, habit or system has always been received to prove the probability that a person acted in the same way as they normally do on the occasion in question. I infer from the law clerk’s evidence that she followed her regular practice when attesting the disputed documents and that, therefore, the signatures purporting to be the husband's are in fact his and that they were not obtained by deceptive means.
I also found the evidence of the wife and the handwriting expert on the point to be reliable and credible. I prefer their’s to the husband’s.
(c)The wife’s partner and/or the receiver artificially inflated the parties' indebtedness under the wife’s partner’s loan so that there would be enough of a shortfall to enable the wife’s partner to exercise mortgagee rights over the Gold Coast property.
The wife's belief that the North Queensland property was only worth $40,000.00 and the upward adjustment of the balance of the loan in the period between the contract and settlement dates by the addition of claims that either pre-dated or were outside the terms of the loan documents, including a payment from a third party source, and the doubling of estimated receivership costs, are prima facie suspicious circumstances which lend a degree of credence to the husband's case.
However, even if the settlement statement was produced and acted on by the receiver for dishonest purposes (about which I make no definite finding one way or the other), there is no direct and insufficient circumstantial evidence, in my opinion, to associate those purposes with the wife or to identify the amendment of the loan from the wife’s current partner and the settlement statement as steps taken on her behalf with her assent or connivance.
(d)The appointment of the receiver constitutes compensable economic fault by the wife. He is a long-standing friend of the mortgagee who, he must have known, was in a relationship with one of the mortgagors, and who was or was likely to be involved in a property settlement dispute with her former spouse. He had never been a receiver of property before and has not acted in that capacity at any time since. He had no experience in either receivership or subdivision management. It was unwise for him to accept the appointment. His neutrality was compromised from the outset and his duty of impartiality was always going to be difficult to discharge.
In addition, the original appointment has been found by a Supreme Court judge to be technically defective.
However, I am unable to infer from the available evidence that the appointment by the wife’s current partner as mortgagee was anything other than a bona fide one which the receiver has conducted to the best of his ability consistently with his fiduciary obligations to all parties. Again, even if the wife’s partner had an ulterior motive for choosing the receiver to take over the management of the subdivision from the parties, there is no basis for sheeting responsibility for that act and any resulting financial losses to the wife without proof of concert.
The duration of the receivership and the escalating costs are genuine matters of concern. However, there is no evidence that anybody else, including the parties, could have done a better job in progressing the development approval application through council and the reasonableness of the quantum of the receiver's costs is not a question for me to decide in these proceedings. Any remedies for the parties, either jointly or severally, against the receiver lie elsewhere.
The parties are legally liable for the costs and there is nothing but the husband's speculation suggesting that the wife will receive any preferential treatment in relation to them.
(e)That the wife's refusal to roll-over the bank loan in 2002 was unreasonable or part of an ongoing conspiracy which resulted in avoidable financial loss.
There is no doubting the closeness of the relationship between the wife and her partner and uncle. The wife’s uncle resides with the wife. He is separated from his wife and is survived only by the wife and three other nieces. He has no existing will and his estate, as things currently stand, would ordinarily be distributed under the intestacy rules if he was to die today. He advanced $350,000.00 to the wife’s partner to enable him to buy out the bank loan in 2002. His interest entitlement is deferred until after the sale of the Gold Coast property. Both the principal loan and accrued interest are unsecured, except indirectly under the mortgage held in the wife’s partner’s name.
Again, apart from the husband's conjecture, there is no ground for supposing that the wife and not her uncle provided the loan monies. She has satisfactorily accounted for the Melbourne unit proceeds and does not appear to have had access to any other funds at the material time. I believe the testimony of the wife’s uncle and the wife on this point.
The evidence does not support the inference that the wife’s partner and uncle are in cahoots or acting as secret trustees for the wife. The wife’s uncle may be naive and perhaps more accommodating than most but he clearly trusts the wife and her partner. Some people regard a hand-shake as more binding than documentation. The wife’s uncle strikes me as one of them.
Thus, the loan from the wife’s uncle has not been shown to be anything other than a genuine arms-length commercial transaction.
According to Counsel for the wife’s calculations, the roll-over cost of the bank loan in 2002 was $560,000.00, including pre-paid interest for a year at 9.5 per cent, but excluding $11,000.00 in brokerage fees. Assuming those terms continued, and that the husband was no more successful than the receiver in obtaining subdivision approval, the bank loan would have had to have been rolled over again in 2003, 2004 and 2005. Assuming the same terms as 2002, the cost of rolling over, with brokerage fees, would have been $778,802.00 by November 2005. The projected balance of the wife’s uncle’s loan as at the same date, in comparison, is $691,020.00. On this analysis, the parties will actually be $87,000.00 in front by the end of this year.
The husband contests the accuracy of Counsel for the wife’s figures and claims that the correct roll-over costs at 9.2 per cent are: (2002) $495,000, (2003) $540,540, (2004) $590,290 and (2005) $644,574.
However, it is unnecessary for me to resolve whether the parties are financially worse off now than they would have been if they had kept rolling over the bank loan because I am not satisfied that the evidence discloses that the overall indebtedness of the parties was increased by the wife's refusal to roll-over the bank loan in 2002 and, even if it did, there are no grounds for holding her accountable for them without proof that (a) her refusal was designed to injure the husband's financial interests or (b) she was economically reckless or inept or (c) she did not have sound and genuine commercial reasons for preferring the terms of the wife’s uncle’s loan over those of the bank roll-over deal.

It follows from the foregoing that the evidence put up by the husband in support of his allegations of any conspiracy, forgery, fraud and wastage falls well short of the mark. The receivership costs and accrued interest on the 2002 loan from the wife’s uncle will therefore be subtracted from the parties' assets to ascertain the net value of the estate.

Contribution issues

The husband contends that the s 79(4)(a), (b) and (c) contributions of the parties to the date of hearing should be assessed as roughly equal. The wife, however, argues for an unequal distribution in her favour based on allegedly greater direct financial and welfare contribution to the household over the length of the marriage and to the children in the post-separation period.
While the common result of balancing the various contributions made over the course of a long marriage may result in an equal division, there is, of course, no presumption or default rule in favour of such a result. The outcome is determined solely by the s 79 process and the balance of the sub-sec (4) considerations.
Importantly, s 79 is not based on notions of distributive justice. It is not supposed to be used to equalise the financial strengths of the parties. Moreover, my function is to measure "contribution" not "time". However, the duration of the marriage remains a relevant factor.[14]
[14] cf. s 75(2)(k).
There is a dispute about how much the husband brought into the marriage at commencement. It is agreed that he contributed the value of his half share in a house with his first wife on the Gold Coast worth about $94,000.00. About a third of the proceeds of that property was used, together with $7,000.00 of the wife's savings, to acquire the first of the parties’ Gold Coast blocks of land, with the balance being invested in a joint account.
There is disagreement as to whether the husband invested the beneficial interest in his parents' unit on the Gold Coast.
The wife denies that he had any such interest and points to the husband's prior statements in a 1983 affidavit (Ex. 25) as confirming her position. At par 10 of Ex. 25, the husband acknowledged that he held the bare legal title to the husband’s parents’ property but at par 12 stated that he held "no interest whatsoever" in the property.
The husband says that the wife and her partner were responsible for drafting that affidavit and any misstatements belong to them. However, I am left with the clear impression of the husband as being a person with a tendency to give coloured evidence to advance his own pecuniary interests in court proceedings. Exhibits 21, 25 and 26 are some examples. Thus, I would not rely on his word alone to resolve a contested issue and there is no objective evidence supporting this claim.
Nonetheless, it is clear, even on the wife's material, that the parties got the benefit of $43,000.00 when the unit was sold in 1987. The North Queensland property was jointly acquired in 1988 for $35,000.00, financed by the wife's legal practice.
Whatever the comparative sizes of the parties' initial contributions, they were made at the beginning of what turned out to be a marriage of long duration and their initial significance diminished over time because of the offsetting contributions of the other.
The performance of the husband's manufacturing business was clearly economically inconsistent. It ran on overdraft for most of the time and returned minimal reported profit and substantial tax losses.
The wife's employment as a solicitor, in contrast, provided the family with a steady and reliable stream of income, which was almost completely absorbed by home and business loan repayments.
The wife says that there is sufficient evidence to find that the husband's "wantonly blind persistence" in conducting the business partnership from 1984 to 2002 at near constant losses was financially ruinous and can properly be viewed as waste. However, s 79(4)(a) and (b) contributions are not measured by the money a party makes as much as the effort he or she puts in.
The business did surprisingly well, in my view, to survive for as long as it did. It may not have produced much taxable profit, but it kept both parties busy and no doubt added to the disposable household income. Its reported losses are not necessarily reflective of the revenue it generated. In any case, they were used to offset the wife's employment income and to give her tax advantages she would not otherwise have had, including the $46,000.00 refund she received for the 2001 - 2004 financial years. The husband will reap an equivalent fiscal reward if and when he files his next tax return.
The wife's stance in relation to the partnership is contradictory. On the one hand, she asserts that it was a costly white elephant while, on the other, she devotes pars 99 to 104 of her affidavit-in-chief detailing all she did for and on behalf of the business to support her own contribution based claim.
The husband and wife’s business partnership must have been a fairly sizeable, if not profitable, venture. It initially operated out of rented premises on the Gold Coast before relocating to a purpose-built industrial workshop on the parties’ Gold Coast property. Its plant and equipment at the time of separation was valued by the wife at $50,000.00. Maybe it was a bit of an indulgence for the husband but it continued to trade year after year with the wife's assent or acquiescence.
The husband’s conduct of the business has not been shown to be so economically irresponsible, reckless or inept so as to amount to a negative contribution, nor do the accumulated losses constitute wastage for s 75(2)(o) purposes any more than the wife’s legal partnership losses do.
In addition to her own earnings and initial savings, the wife says that her mother and grandmother contributed a total of $287,000.00 to the household (for and on her behalf) between 1989 and the date of separation from their rental, pension, and investment income from the proceeds of the sale of her mother's unit in Melbourne.
The wife held a power of attorney for both her mother and grandmother. They both moved to the Gold Coast in 1989 and were members of the household until 2001. Both allowed the wife to utilise their funds to meet business and domestic liabilities and supplement household income.
The wife says the funds were used by the parties on the clear understanding that they would be reimbursed from business partnership revenue or from subdivision profits.
The wife’s mother and grandmother occupied a self-contained flat the husband constructed on the Gold Coast property using the business overdraft.
The wife's grandmother died in 2001. Her mother, sadly, died during the hearing. The wife was, for all intents and purposes, the sole beneficiary under both wills.
The question of how the parental and grandparental donations to the household should be apportioned under s 79(4)(a) and (b) depends on the intention of the donors.
The wife proposes, and therefore has the onus of proving, that the advances were made by her relatives on her behalf and should, therefore, be treated as a sole contribution asset rather than a joint gift to both parties. However, there is no direct evidence of the intention of either the mother or the grandmother.
Despite how the parties themselves may have initially viewed the advances, I doubt that either the mother or grandmother saw them as loans to be repaid. Neither ever demanded repayment nor charged interest. They were probably gifts or contributions made by two elderly women for the benefit of the household, that is, the whole family (rather than just the wife), in return for their accommodation and other basic needs being met.
Importantly, the funds were relied on and mixed with all other sources for the improvement and conservation of joint property.
In the circumstances, the funds will be treated as an equal contribution to property and family welfare.
Both parties made substantial direct non-financial contributions to the improvement and maintenance of the Gold Coast property. Both worked hard planting trees and establishing gardens. I accept that when the husband was - to use the wife's term - "playing around" with the earthmoving equipment he was in fact landscaping and adding value to the property.
The wife claims that she made 90 per cent of the welfare contribution. She did nearly all the cooking, except for the occasional barbeque, and domestic cleaning. The children were cared for by a full-time, live-in, nanny from 1991 (when A was 10 months old) between 8.00 am and 6.00 pm on weekdays. The wife was responsible for them before and after work and at other times, with the assistance of her mother and grandmother. She says she ferried the children to and from school, and music lessons twice a week, and tennis on Saturdays. She acknowledges that the husband collected the children after pre-school four times a week when he was not working.
As between the two parties, the wife was probably the more available carer during the marriage. She has certainly been the sole parent in the 3.5 years since separation with minimal help, financial and otherwise, from the husband.
The wife also contends that she should receive a loading because she made her s 79(4)(a), (b) and (c) contributions in the context of a home environment, "made more difficult by virtue of the husband's personality, attitude and actions", which placed a great deal of stress and extra responsibility on her. This is an attempt to extend the Kennon principle beyond its intended scope. Putting up with a difficult or even tyrannical spouse does not generally have any favourable economic consequences for the affected party. To be compensable under s 79, the conduct complained of, whether violent or not, must have had a substantial adverse impact on the physical or emotional well-being of the complainant spouse to the point that the contribution she made to the marriage can be seen as worth more than it otherwise would have been. The husband's conduct has not been shown to have made any discernible difference to the value of the wife's contribution.
Unravelling the marital arrangements and financial implications of a long marriage is no mean feat. It is even more complicated when the parties disagree about the nature and extent of each other's contributions. Couples who cannot agree about property settlement are entitled to seek a judicial decision without exposing themselves to a distasteful and undignified retrospective appraisal of their respective performance in the marriage over 19 years.[15] Litigants should not be encouraged to indulge in a " . . . general rummage through the attic of their marriage to discover relics from the past" to enhance their own role or diminish their former spouses.[16]
[15] Lambert and Lambert [2003] Fam 103 at 117 per Thorpe LJ.
[16]G and G (Financial Provision: Equal Division) [2002] 2 FLR 1143 per Coleridge J at 1160. See also Kennon and Kennon (1997) FLC 92-757 at 84,296.
Weighting contribution in exercising the adjustive jurisdiction does not really focus on the question "who did most of the work in the business and at home?" Nor is it concerned with comparing or contrasting a catalogue of the efforts each party made in their respective roles. The quality of the performance on either side is not the decisive factor. What matters most is the division of roles within the family unit and whether each party pulled their weight in their chosen or allocated sphere.
In accentuating the need to make an evaluation of the parties' respective efforts rather than the results they achieved, Nygh J in Shewring (1988) FLC 91-926 at 79,572 expressed the view that a qualitative assessment of contribution should be based on the principle that each party should make such contribution as can reasonably be expected having regard to the nature of the party's capacity, the ability of each of the parties and expectation of the spouses.
The answer to the central question here of how to place a fair value on the competing contributions of the parties lies, at least partly, in what the marital relationship is in the modern era. Marriage in this country is "an institution" involving the union of a man and a woman to the exclusion of all others entered into voluntarily for life: see s 43 of the Family Law Act, 1975. Included in the mutual undertakings of people who marry each other is the promise, reflected in s 72 of the Act, to always maintain the other to the extent of their respective means and needs : cf. Evans and Marmont (1997) 42 NSWLR 70 at 79.
This means that for most partners marriage is an economic as well as a personal commitment and which, as the Full Court noted in Kennon at 84,299, is a partnership of equals involving :
". . . a myriad of matters, large and small, which go to make up that union and differentiate it from more casual transitory relationships. It means sharing the minutia of family life, support during good and bad times, care and intimacy. These and other matters are intended to be encompassed in s 79, and the actual balance of these components vary from marriage to marriage. Essentially it - that is, marriage - is an intimate sharing of mutual but diverse talents for their joint benefit".
Typically, marriage is a give and take proposition, characterised and distinguished from others by an endless stream of implied commitments and reciprocal duties of devotion. Usually, spouses divide roles and responsibilities between themselves and choose to live in a way that will advance their common objectives and best interests, both as individuals and as a couple, expecting their loving relationship to last for a lifetime: Waters and Jurek (1995) FLC 92-635 at 82,379.
The reported decisions in respect of applications for settlement of property under s 79 are unanimous that both parties should share the economic fruits, as well as the financial losses, incurred by either of them in the course of the marriage, although not necessarily equally : Kowaliw (1981) FLC 91-092 at 76,643-76,644; Browne v Green (1999) FLC 92-873.
However, as I have already noted, the assessment of contribution is ultimately a discretionary process, regulated by the facts in a particular case.
While it may be that the husband did not contribute all that he could have emotionally and physically to the wealth and welfare of this marriage, he did what was required of him given the parties' mutual expectations and personalities.
There is nothing in the material to suggest that on a global view the direct and indirect financial contribution of the parties to the date of separation was demonstrably unequal because of the husband's failure to shoulder his fair share of the burden.
The search of a judge in deciding a property case in this country is for a just and equitable solution. In my opinion, that solution in this case based on contribution alone to the date of separation is a 50/50 split. However, the wife's post-separation welfare contribution involving the housing and provision of all other physical and educational needs of two teenage girls caught in the middle of an acrimonious parental separation, entitles her, in my view, to an extra 2.5 per cent.

Adjustment factors

Section 79(4)(e) requires me to consider the matters in s 75(2). The most relevant of these here are the age, state of health, income, financial position and earning capacity of the parties as affected by the duration and demands of the marriage.
The parties are both in good health. The husband is sixty-five years old next birthday. At forty-nine, the wife is much younger and has a longer working life ahead of her.
Both parties have re-partnered. The wife is in a stable relationship with her partner and has a half-interest in an established Gold Coast law firm.
The wife has a small employer-funded superannuation entitlement of about $20,000.00. The husband has none.
The husband operated the partnership business until 2002. He was bankrupted in 2003. Since then, he says he has only earned about $25,000.00 from sub-contract work. He currently receives unemployment benefits and pays $22.00 per month or $2.50 per child per week in child support. He is clearly physically fit and has the skills for gainful employment. He himself is hopeful of being more employable when this litigation is finished and final property orders have been made. However, his age is against him and, on past performances, I think it is unlikely that he will ever be in a financial position to make any sizeable child support payments in the future.
The children have attended the same private school since they were in pre-school. The wife pays approximately $4,500.00 per term in school fees and an additional $1,500.00 or so on piano and tennis lessons, etc. Both parties are committed to continuing to educate the girls in the private school system to tertiary entry level.
The husband contributed his share of joint trust funds to the payment of some school fees pursuant to court orders in 2002 but has not paid anything since then despite having exclusive use and occupation of the former matrimonial home and the adjoining workshop from October 2001 to September 2003.
The wife contends that s 75(2)(o) should be used to take account of the husband's allegedly wasteful conduct in unnecessarily incurring additional receivership costs of $74,000.00 by challenging the receiver's appointment, refusing to voluntarily vacate the former matrimonial home and having to be removed by court order, refusing to co-operate with the subdivision and forcing the receiver to incur additional security costs to prevent theft from the Gold Coast property.
The wife also asserts that the costs of the husband's bankruptcy of more than $20,000.00 could have been avoided if he had defended the sequestration proceedings.
However, the husband was entitled to challenge the validity of the receiver's appointment. He was initially successful. The receiver's decision to incur extra security costs at the Gold Coast property cannot be attributed to any proven conduct on the husband's part. The economic consequences of his alleged non-co-operation cannot be separated out or satisfactorily quantified.
There is little evidence to support a finding that the husband would not have gone bankrupt if he had acted any differently.
Notwithstanding the disparity in the ages, incomes and overall financial (including the superannuation) position of the parties, I think that an upward adjustment of 10 per cent to the wife's contribution based entitlement is justified to help her meet future child-care related needs.
An order dividing the net pool of assets 62.5 per cent to the wife and 37.5 per cent to the husband, in my opinion, satisfies the requirement of justice and equity in s 79(2). It recognises the wife's greater effort in recent times and her future needs, while at the same time providing the husband with a reasonable lifestyle in his new situation as a single person, as well as compensating him for his comparatively bleaker economic outlook.
The husband's past history in complying with the terms of court orders for the payment of money for the benefit of the wife is chequered. There are still some outstanding costs orders. I doubt that these Reasons will do anything to alter the husband's belief in the conspiracy theory or reduce his hostility towards the wife and her partner. I accept Counsel for the wife’s submissions that the safest and surest way of giving force and effect to my orders is to make the wife's share payable to her by the receiver and trustee in bankruptcy and secure that by charging the residue of the husband's bankrupt estate with the payment of these and any other unpaid orders.
I propose to make the following property orders pursuant to s 79(1) of the Family Law Act, 1975 :

IT IS ORDERED THAT:

On the conclusion of the administration and/or management by the HUSBAND's Trustee-in-bankruptcy and the Receiver that the net property available for distribution to the parties be apportioned 62.5 per cent to the WIFE and the balance to the HUSBAND.

The HUSBAND's estate in bankruptcy and the assets in possession of the Receiver be charged with the liability to the WIFE in paragraph (1).
The Trustee and Receiver satisfy the charge in paragraph (2) and pay 62.5 per cent of the residue directly to the WIFE before any distribution to the HUSBAND.
The balance of the chattels located at the husband’s business’ storage facility be divided equally between the parties.
Save and except as otherwise provided herein, each party retain for their sole exclusive use and benefit all such property, real and personal, including financial resources and superannuation entitlements as currently are in their sole possession, power or control.
The final applications for children and financial orders be removed from the list of matters awaiting finalisation.

IT IS FURTHER ORDERED THAT:

Judgment in relation to the oral applications made by the subpoenaed witnesses, Mr G and Mr D, be reserved.

I certify the preceding 209 numbered paragraphs

are a true copy of the reasons for judgment and orders

of the Honourable Justice Carmody

Dated the 11th day of May 2005

Associate.